Ideas We Can Steal

from past legal systems

My previous post provided an example of the use of past legal systems in understanding our present legal system: the logic of feud law applied to high tech patent litigation. There are others, some of which suggest changes we might want to make to our system, ideas we could steal. For example …

The Athenian Rule

One problem with tort law is that a plaintiff who sues an innocent defendant in a system with legal error imposes a cost on him, in addition to his legal costs, the risk of losing the case and being found liable for damages. That may be a sufficient risk to persuade the defendant to pay off the plaintiff, settle out of court for less than the plaintiff claims — but possibly ­­enough to make bogus suits a profitable form of extortion.

In Periclean Athens, their equivalent of a tort plaintiff who lost his case owed damages to the defendant, a sixth the amount he claimed the defendant owed him. That compensates the innocent defendant, makes suing someone unprofitable unless there is a substantial chance of winning the case, and gives plaintiffs an incentive to moderate their claims.

Plea Bargaining, Overcharging, and Athenian Law

Part of the problem with the modern system of plea bargaining is that a prosecutor can stack charges. Consider a defendant arguably guilty of an assault punished by a year in prison. The prosecutor charges him not only with that but attempted murder as well. Facing only an assault charge of which he believes himself innocent, the defendant might choose to go to trial with a reasonable hope of being acquitted. Charged with murder as well, facing a significant chance of a year in prison and a much smaller but non-zero chance of twenty years, he agrees to plead guilty to the lesser charge. Is there a way of changing the incentives of prosecutor and defendant to discourage that approach?

In Athens, a private prosecutor who failed to get 20% of the (very large) jury to vote for conviction could be fined. In modern legal systems the prosecutor is not a private citizen but an official acting for a government, which makes that approach less workable, but there might be other ways of doing it. One could, for instance, provide that if, in three different cases over a year, there was at least one charge on which fewer than four jurors voted for conviction, the prosecutor will be removed from office, a three strikes rule. That gives a prosecutor a reason not to file charges that he cannot support at trial.

If he files such charges anyway the rule provides no protection to the defendant, hence no reason for him not to give in to the threat; if he gives in the charges never get tried. Consider instead, or in addition, a rule providing that a defendant who is acquitted on any one charge must receive the lowest legal penalty on any charges he is convicted of. That reduces the power of the prosecutor’s threat, giving him an incentive to charge the defendant only with offenses the prosecutor thinks he can convict him of.

I doubt that either variant could get adopted in a U.S. jurisdiction at present but there are other places and will be other times.

A third way of doing it would be to limit prosecutors from prosecuting multiple charges for a single act. Arguably that rule is the natural extension of the legal rule against double jeopardy, so could be imposed by judges without any additional legislation. There would be line drawing problems defining what counts as a single act in some cases, but not all.

For much more on Athenian law, see Chapter 16 of Legal Systems Very Different From Ours.

Marketable Torts

In modern tort law, it is up to the victim to identify and prosecute the tortfeasor. In the Icelandic system it was also up to him, once he got a verdict from the court, to enforce it. That could be a problem for a victim with insufficient resources, defined mostly in terms of the ability to use force, himself or with the aid of allies, to prosecute the case and enforce the verdict. The solution was to make claims marketable, permitting the victim to transfer his claim to someone better able to pursue it. He might or might not end up with a share of the damage payment — but then, crime victims usually collect nothing under our system. At least the offender would pay, giving potential offenders a reason not to violate the rights of even weak victims.

Consider the application of the same approach to modern tort law, where the victim needs resources to win his case even if not to enforce the verdict. A careless driver damages your car and perhaps you. You cannot afford a lawyer. You may be able to get a law firm to take the case on a contingency basis, in exchange for a share of whatever damages it collects. But you find it hard to judge which law firm will do the best job, collect the most. Even if you can afford a lawyer, you still do not know which one will do the best job for you.

If tort claims were fully marketable you could simply auction the claim off to the highest bidder.

That is not the only advantage of marketable tort claims. Consider a tort that does a small amount of damage to each of a large number of people. The current mechanism for dealing with such is a class action. An enterprising attorney persuades a few of the victims to appoint him to act for them, a judge to authorize him to pursue the case on behalf of all the other victims as well.

While the attorney has an incentive to try to win the case and collect damages, he also has an incentive to direct as much as possible of the payment to himself rather than to his supposed clients. Ideally the judge keeps him honest. If not, the attorney agrees with the defendant on a multi-million-dollar settlement consisting of a million dollars in real money to the attorney, ten million for the tort victims in the form of an offer of discounts on future purchases.

Suppose tort claims were marketable. A firm such as an insurance company that routinely deals with a large number of customers offers a discount to anyone willing to sign over to it all tort claims he might have in the next year for less than a hundred dollars. An enterprising lawyer concludes that ten million people have gotten mildly sick due to something wrong with a brand of canned beans, giving each a legitimate claim for ten dollars in damages.

The lawyer goes to the insurance company and offers to buy all of their claims for injury from canned beans. He makes the same offer to other firms that have similarly purchased their customers’ small claims. When he is done, he owns three million claims for ten dollars each. He goes to the bean company and offers to settle for eighty cents on the dollar, twenty-four million dollars. If they turn him down he sues, not on behalf of the victims, who have sold their claims to him via middlemen, but for himself. There is no need for an attorney to pretend to represent millions of people who have never heard of him, no need for a judge to monitor the settlement to make sure it is fair to the victims. The victims have been paid in advance.

Iceland had marketable claims in the tenth century. America does not have them yet. Our legal system is more than a thousand years behind the cutting edge of legal technology.¹

To Catch Up With Eighteenth-Century England

From time to time someone commits a crime that his government approves of. Examples in my lifetime include murder (of Black Panthers Fred Hampton and Mark Clark by Chicago police in 1969) and perjury (by Director of National Intelligence James Clapper testifying to Congress in 2013). Criminal prosecution in our legal system is by the government, so crimes the government approves of are unlikely to be prosecuted and neither of those was. But the Black Panther shooting produced a civil case that eventually settled for 1.85 million dollars, paid by Chicago, Cook County and the federal government.

A civil suit is one way of dealing with a crime that the government chooses not to prosecute, but not all crimes produce grounds for such a suit. In eighteenth-century England, the solution was much simpler: Any Englishman could prosecute any crime.²

Someone convicted in an ordinary criminal prosecution could be pardoned by the king — in our legal system by the president — but there was a form of private prosecution, an appeal of felony, which treated the criminal prosecution as a private case, like a tort case.

“If the appellee be found guilty, he shall suffer the same judgement as if he had been convicted by indictment: but with this remarkable difference; that on indictment, which is at the suit of the King, the King may pardon and remit the execution; on an appeal, which is the suit of a private subject, to make an atonement for a private wrong, the King can no more pardon it, than he can remit the damages recovered in an action of battery.” (Blackstone 1884, Bk 4 Ch 23)

Suppose we wanted to change our system to deal with the problem of the government refusing to prosecute crimes it approves of. We could do so by changing our law to permit a private citizen to institute a criminal prosecution against a defendant whom the state failed to prosecute. That sounds like a radical proposal but a version of it already exists in modern American law. Some statutes provide the option of a private attorney general, prosecution by a private citizen. As in English law in the late eighteenth century, the successful prosecutor could, at the option of the judge, be awarded attorney fees to cover his costs. I am proposing a modest expansion of the existing rule — to cover all crimes.

One question remains: Is the result a good one? Seen from one side, it is a precaution against governments murdering people they don’t like. Seen from the other, it reduces the ability of the legal system to ignore illegal acts that are not worth punishing.

In the U.S. at present, it is illegal for college students who are under twenty-one to buy, possess, or consume alcoholic drinks or for others to provide alcoholic drinks to them.³ Would it be a good thing for a student with a grudge against his ex-girlfriend or her new boyfriend to be able to have one or both arrested, charged with (depending on the state and circumstances) a misdemeanor or felony and, if convicted, jailed for several months, conceivably several years?

Here again, evidence from past legal systems is relevant. Under the English game laws, some wild animals were considered property of the Crown and hunting them restricted to the king or those he had authorized. The result was that the right to hunt such animals did not always belong to the owner of the land on which they were hunted. The restriction was widely ignored, providing opportunities for the threat to prosecute to be used to extort money from landowners guilty of the crime of hunting the king’s deer on their own land.⁴

A possible compromise might be to permit private prosecution only against government employees. Think of it as an updated version of Mencken’s proposal.

“… any [American citizen], having looked into the acts of a jobholder and found him delinquent, may punish him instantly and on the spot, and in any manner that seems appropriate and convenient―and that, in case this punishment involves physical damage to the jobholder, the ensuing inquiry by a grand jury or coroner shall confine itself strictly to the question of whether the jobholder deserved what he got.”

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1. For a more detailed description of how such a system might work, see Friedman 2000, 99-100, 266, 282.

2. For details see Chapter 15 of Legal Systems Very Different from Ours.

3. In Florida, possession is a misdemeanor punishable by up to sixty days imprisonment plus suspension of driving privileges. In Illinois, providing alcohol to someone under age is a misdemeanor with a penalty up to a $2,500 fine and a year in jail or a felony with a penalty of a year or more in jail and a fine of up to $25,000.

4. Hay, Douglas. 1989. “Prosecution and Power: Malicious Prosecution in the English Courts, 1750-1850.” In Hay, Douglas and Francis Snyder, Eds. 1989. Policing and Prosecution in Britain: 1750-1850. Oxford: Oxford University Press.